Commonwealth v. Soun
Commonwealth v. Soun
Opinion of the Court
The defendant, Kevin Soun, was convicted by a jury of assault and battery on a police officer in violation of G. L. c. 265, § 13D, and resisting arrest in violation of G. L. c. 268, § 32B. The defendant moved unsuccessfully for a required finding of not guilty on the charge of resisting arrest at the close of the Commonwealth’s case. The principal issue on appeal is whether an order by the police to turn around and place one’s hands behind one’s back is sufficient to satisfy the prong of the resisting arrest statute that requires the Commonwealth to prove that a reasonable person understood that an ' • ■est was being effected. We answer that question, “Yes.”
Suddenly, the defendant, who is Brian’s father, emerged with a group of people from another room in the apartment. At about the same time, Officer Parousis told Brian to turn around and put his hands behind his back.
Discussion. We apply the familiar Latimore test. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
“A defendant resists arrest if ‘he knowingly prevents or
1. Effecting an arrest is a process. The defendant contends that a rational jury could not find him guilty of resisting arrest because Brian was not arrested until some time after the defendant was arrested and thus his actions of interceding between the officers and Brian were not at the time the police were effecting an arrest.
The event of effecting an arrest does not begin and end at the moment an individual is placed in handcuffs and told that he is under arrest. Effecting an arrest “is a process that begins when the . . . three [Grandison] criteria are present and ends when the person is fully detained by his submission to official force or placed in a secure location from which he can neither escape nor harm the police officer or others nearby.” Commonwealth v. Knight, 75 Mass. App. Ct. 735, 738-739 (2009).
2. Application of Grandison elements. We examine whether the defendant’s conduct prior to any explicit statement that Brian was under arrest or the handcuffing of Brian was sufficient for a rational jury to convict the defendant of resisting arrest.
a. Proof of seizure. A rational jury could find that Brian had been seized prior to the moment the defendant interceded. A seizure, for the purposes of resisting arrest, occurs when a reasonable person, “in view of all the circumstances surrounding the incident, . . . would have believed that he was not free to leave.” Commonwealth v. Powell, 459 Mass. 572, 577 (2011), quoting from Commonwealth v. Franklin, 456 Mass. 818, 820 (2010). At the time the defendant stepped between the officers and Brian, Officer Parousis already had requested that Brian turn around and place his hands behind his back.
b. Proof of intent to effect an arrest. In view of the direct testimony by Officer Gagne of the officers’ intent to arrest Brian, no serious argument can be made that the second Grand-ison element was not met.
c. Understanding of person accused. The test to determine whether a person understood that he was observing someone being arrested is an objective one, i.e., “what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes.” Commonwealth v. Montoya, 73 Mass. App. Ct. 125, 127 (2008), S.C., 457 Mass. 102 (2010), quoting from Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778 (1982), rev’d on other grounds, 463 U.S. 239 (1983).
The “police do not need to use the word ‘arrest’ in order for there to be an arrest.” Commonwealth v. Quintos Q., 457 Mass. 107, 111 (2010). Other phrases and situations commonly associated with arrest can create the required level of understanding. See, e.g., Commonwealth v. Grant, 71 Mass. App. Ct. at 210 (while flight from investigative encounter not sufficient to support charge of resisting arrest, there was sufficient understanding of intent to arrest where police drew gun and ordered defendant to “get to the ground” after chasing him).
We have not previously held that an order to turn around and place hands behind one’s back was sufficient to allow an ordinary person to understand that an arrest was being effected. Cf. Commonwealth v. Smith, 55 Mass. App. Ct. 569, 574-575 (2002) (statement by police officer to defendant standing with group in alleyway to stop, even when repeated, was only attempt to seize or to detain person for threshold inquiry). However, viewed objectively, such an order is commonly associated with the initial phase of an arrest, as is shown by the facts of many reported cases. See, e.g., Commonwealth v. Grandison, 433 Mass, at 143-144;
Here, in light of the defendant’s belligerence, the close quarters of the apartment, and the number of people in proximity to the officers, a police command to turn around and put one’s hands behind one’s back reasonably could not be understood as simply a detention for a threshold inquiry. Viewing the evidence in the light most favorable to the Commonwealth, a rational trier of fact could find beyond a reasonable doubt that a reasonable person in the defendant’s place would understand that the police intended to arrest Brian when the police ordered him to turn around and place his hands behind his back after a tense situation in which Brian yelled at them, made threatening gestures at them, and ignored several police commands.
Judgment affirmed.
Because this is an appeal of the denial of a motion for a required finding, the facts are stated in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
We refer to Brian by his first name to avoid confusion.
Officer Gagne testified to this at trial. Officer Parousis was not questioned on the point.
Officer Gagne testified that Officer Parousis “was about to put the handcuffs on [Brian] and place him under arrest.”
The defendant does not contest that, under G. L. c. 268, § 32B(a), he can be convicted of resisting the arrest of another, in this case, Brian.
We have stated previously that the process of effecting an arrest does not
The fact that Officer Parousis himself did not testify that he requested Brian to turn around and place his hands behind his back is immaterial. See Commonwealth v. Semedo, 456 Mass. 1, 8 (2010) (in making sufficiency of evidence determination, “we do not weigh the supporting evidence against conflicting evidence, nor do we consider the credibility of the witnesses”).
While Grandison concerned resisting arrest, there did not appear to be any dispute that the police already had begun effecting an arrest at the time they told the defendant to place his hands behind his back. It thus does not dispose of the issue presented in this case.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.